WCAB: Never Mind; 6th Edition AMA Guides NOT in Play

Author Gregory Grinberg practices law in the San Francisco Bay Area, focusing on workers’ compensation defense.  This article and others can be found on his website, WCDefenseCA.com.

It appears, dear readers, that in response to a post recently offered on this humblest of blogs, a frenzied mob stormed the Workers’ Compensation Appeals Board, tearing up separator sheets, burning AMA Guides, 6th Edition, copies in a bonfire while decrying heresy, and professing that the 5th Edition is the one, true method of rating permanent impairment.

In response to such spirited objection, or perhaps after further reflection, the WCAB has issued a new decision in the Frazier matter, rescinding the prior opinion and explaining, in clear-as-daylight terms, that no, the 6th Edition of the AMA Guides is NOT in play.

If you’re not the type of reader to re-read old posts, or you’re too exhausted from hump-day celebrations to click the link, allow this humble blogger to offer the following summary:

An AME found that two sections of the AMA 5th Edition describe applicant’s impairment, one with a 30% WPI, and one with a 20% WPI.  The AME found that the 20% was a better fit, but after reviewing the same section in the 6th Edition, which included a 24% WPI, the AME went with that section, reasoning that the 5th Edition was old and the new, 6th Edition, was much newer (2000 vs. 2007).

The WCAB, in the original opinion, declined to reverse the WCJ’s award based on the 6th Edition opinion, but then realized that they were effectively endorsing the use of the 6th Edition of the Guides, which was, of course, workers’ compensation heresy.  What is this new faith, this new doctrine, that intrudes upon the sacred text anointed by our rulers on Mount OlympusSacramento?

Well, upon its own motion, the WCAB granted reconsideration, and in, in a split panel, reversed, instructing the WCJ to issue an award on the current record or develop the record further, but not to issue an award based on the 6th Edition.

The dissenting opinion argued that the WCJ reasonably awarded 24% WPI (44% Permanent Disability) and that the applicant could have, but chose not to, seek relief for the reduction of WPI from the original 30%.

Additionally, the dissent further makes the point that this entire opinion is on the WCAB’s own motion.  Neither party sought further guidance from the WCAB and appeared (grudgingly) content to let the sleeping dogs of litigation lay.

In any case, this issue is not done.  The 5th Edition is old enough for a Bar Mitzvah, at this point, and the research and statistics upon which that green tome is based may no longer be relevant.  Population change and the nature of industry may have prompted new numbers for impairment; medical treatment may have reduced the effects of injuries.

Furthermore, with all due respect to the WCAB, a panel opinion does not present binding authority upon a workers’ compensation Judge.  As your humble blogger has heard countless times to his disappointment, the WCJ can simply say “I acknowledge the precedent set by these panel opinions, and I am declining to follow them.”  This case can come up again and again, once someone invests the time to actually read the 6th Edition.

Our phones become obsolete fourteen times in thirteen years; these days, surely medical knowledge changes at least a bit.

But the Board is not the place for those changes – the Legislature is.  And once we’re done setting a price cap on copy service fees and taking away the ability of injured workers and defendants to settle supplemental job displacement benefit vouchers or agree on medical evaluators to determine issues of medical treatment, perhaps we can update the source of our impairment ratings.

For now, at least, the heresy of modern medical texts will not infect the land of the 5th Edition faithful.  Amen.